Citation Nr: 9908810
Decision Date: 03/30/99 Archive Date: 04/06/99
DOCKET NO. 93-23 370 ) DATE
)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Phoenix, Arizona
THE ISSUE
Whether new and material evidence has been submitted such
that Cinnamon might have been recognized as the veteran's
child for compensation purposes.
(The issue of entitlement to special monthly compensation
based upon housebound status or a demonstrated need for aid
and attendance is the subject of a separate decision.)
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
H. J. Harter, Counsel
INTRODUCTION
The veteran served on active duty from March 1943 to December
1945.
This appeal was previously before the Board of Veterans'
Appeals (Board) in June 1996 when it was remanded for
procedural development. It has now been returned to the
Board for appellate review.
REMAND
In the 1996 remand, the Board returned the appeal to the RO
1) to clarify whether the veteran desired a hearing and to
schedule such a hearing, and 2) to review evidence submitted
after the most recent statement of the case and to issue a
supplemental statement of the case reflecting that review.
Upon remand, the RO complied with the first requirement by
scheduling a hearing. Although the RO mailed notice of the
time and place of the scheduled hearing to the veteran at
several different addresses and requested assistance from the
veteran's representative in identifying his current address,
he failed to appear for the hearing. A careful review of the
record reveals, however, that the most recent piece of
correspondence from the veteran was received in June 1996.
This letter bears a different address than those used by the
RO in notifying him of the scheduled hearing. It thus
appears reasonable that the veteran may not have received
actual or constructive notification of the scheduled hearing.
With respect to the matter of the veteran's address, there
ordinarily exists a presumption that the relevant materials
were mailed to the correct address. Ashley v. Derwinski, 2
Vet. App. 307, 308 (1992). That presumption may be rebutted,
however, if there is evidence to the contrary. Id. at 309.
"It is only where a file discloses other possible and
plausible addresses that an attempt should be made to locate
him at the alternate known address before finding abandonment
. . . ." Hyson v. Brown, 5 Vet. App. 262, 265 (1993)
[emphasis by the Court]. Because it appears that the veteran
has not received notification of the scheduled hearing at the
most recent address he has provided the RO, the Board holds
that further action is required to satisfy the VA's duty to
provide the veteran with an opportunity for a hearing and
that another attempt to notify the veteran of a hearing date
is warranted.
Upon remand, the RO was also instructed to consider newly-
submitted evidence and to issue a supplemental statement of
the case reflecting such consideration. A review of the
claims file indicates that no action has been taken in this
regard. The RO is required to fully complete the development
ordered by the Board. Stegall v. West, 11 Vet. App. 268
(1998). Thus a remand is required for the consideration of
all the evidence submitted by the veteran in support of his
attempt to reopen the previously-denied claim and for the
issuance of a supplemental statement of the case pertaining
to the issue of whether new and material evidence has been
submitted such that Cinnamon might have been recognized as
the veteran's child for compensation purposes.
To ensure full compliance with due process requirements, the
case is REMANDED to the RO for the following development:
1. The RO should schedule a hearing
before a Member of the Board at the RO.
The veteran should be notified of the
scheduled time and place at the most
recent address of record. All attempts
to contact the veteran in this matter
should be fully documented in the
veteran's claims file.
2. The RO should specifically consider
any and all evidence not previously
considered in conjunction with a decision
on the issue of whether new and material
evidence has been submitted such that
Cinnamon might have been recognized as
the veteran's child for compensation
purposes. If the benefit sought on
appeal remains denied, the veteran and
his representative should be furnished a
supplemental statement of the case and
given the opportunity to respond.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
V. L. Jordan
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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